Citation Nr: 0018852
Decision Date: 07/18/00 Archive Date: 07/25/00
DOCKET NO. 96-17 613 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for residuals of mumps with
loss of use of a creative organ.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and appellant's spouse
ATTORNEY FOR THE BOARD
Jonathan E. Taylor, Associate Counsel
INTRODUCTION
The appellant served on active duty from November 1962 to
July 1963. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from an April 1995 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which disallowed the appellant's
claim for service connection for residuals of mumps as he had
failed to submit evidence requested by the RO. A subsequent
rating decision of February 1996 confirmed that denial.
The appellant and his spouse appeared at a hearing held at
the RO on April 21, 1997. A transcript of that hearing has
been associated with the record on appeal.
This case was before the Board previously in February 1998,
when it was remanded to obtain information from the appellant
and to make additional attempts to obtain the appellant's
service medical records. The requested development has been
completed.
FINDINGS OF FACT
1. The appellant has a diagnosis of infertility related to
mumps.
2. The appellant has presented no medical evidence of
incurrence of mumps in service.
CONCLUSION OF LAW
The claim of service connection for residuals of mumps with
loss of use of a creative organ is not well grounded, and
there is no further statutory duty to assist the appellant in
developing facts pertinent to his claim. 38 U.S.C.A. §
5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
In September 1994 the National Personnel Records Center
(NPRC), responding to a request from the RO, stated that no
service medical records were found in the appellant's file.
In a February 1995 statement, the appellant stated that he
had been told several years previously that he was sterile.
He stated that the clinic where he had been informed of this
had been closed for a long time.
An August 1995 VA laboratory report indicates that, on
testing of the appellant's seminal fluid, no sperm were seen.
In a March 1996 statement, the appellant requested that the
RO request his records from the VA "RPC" because he had
filed a claim for service connection for sterility during the
1980s.
At the April 1997 hearing, the appellant testified that he
had mumps in January 1963. He stated that he had been
hospitalized at Fort Knox. He stated that his condition had
been "very bad." He indicated that, before he had been
hospitalized, he had been forced to go out into the field
although he was already not feeling well. He stated that he
had been hospitalized for two weeks. He stated that the
physicians had spoken amongst themselves but had not told him
anything, including information about complications. The
appellant stated that his unit designation in service had
been F-12-4. The appellant stated that he had been married
for nineteen and one-half years. He stated that he had never
had any children. The appellant indicated that, post
service, he had not been treated by a physician until after
he was married. He stated that the clinic, where he had been
informed that he was sterile, was "not there now."
The appellant's spouse testified that she did not know prior
to her marriage to the appellant that he had the mumps in
service. She stated that she did not know that he was
sterile until the appellant was informed by a physician. She
expressed great regret that she and the appellant were unable
to have children together.
In a May 1997 statement, a VA physician indicated that he and
other physicians had treated the appellant for the previous
three years. He stated that that appellant had "Infertility
(Sterility) secondary to Azoospermia (zero sperm count in his
case)." He added that the appellant's condition was
irremediable. The physician opined that because the
appellant had suffered from mumps virus infection and had
reported the disease spreading to his testicles, the mumps
viral infection was the cause of the appellant's sterility.
The physician explained that positive titers had confirmed
the appellant's previous infection with mumps virus.
In June 1997 the NPRC, responding to a request from the RO,
stated that no clinical records regarding treatment of the
appellant at Fort Knox in 1963 were found.
In an April 1998 statement, the appellant clarified that his
unit designation in service had been Company F, Battalion 12,
Regiment 4. He stated that he had filed his claim with VA in
August 1994.
In April 1998 the NPRC, responding to a request from the RO,
stated that the appellant's service medical records had been
provided to the RO in June 1997.
In August 1999 the VA Records Management Center (RMC),
responding to a request from the RO, stated that the
appellant's file was not of record.
II. Legal Analysis
The RO requested the appellant's service medical records from
the NPRC. The NPRC stated that no service medical records
were in the appellant's file and that no clinical records
from Fort Knox are available regarding treatment of the
appellant in 1963. The RO also requested service medical
records from the VA RMC, which responded that no record was
found for the appellant. In cases where a veteran's service
medical records are unavailable through no fault of the
claimant, there is a heightened obligation to explain
findings and conclusions and to carefully consider the
benefit of the doubt doctrine under 38 U.S.C.A. § 5107(b).
See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The absence
of the appellant's service medical records does not, in and
of itself, render the appellant's claim untenable. Rather,
his claim can be substantiated by collateral evidence, such
as post service medical records, lay statements, and
testimony.
This case was remanded by the Board in February 1998 to
request information from the appellant regarding any previous
claim that he may have filed with VA, to attempt to obtain
service medical records from the NPRC using the appellant's
correct unit designation, and to obtain from Fort Knox Army
Hospital records regarding the appellant's reported
hospitalization there in 1963. The appellant's response
indicated that he had not filed a claim prior to 1994, when
he filed the present claim. The NPRC responded that it did
not have service medical records for the appellant. Although
the RO did not contact Fort Knox Army Hospital directly for
possible records of the appellant's reported hospitalization
there in 1963, the RO had previously contacted the NPRC for
these records from Fort Knox. See M21-1, Part III, para.
4.01(i)(2) ("Clinical records are retained by the treating
facility for 1 year after the end of the calendar year during
which the veteran received treatment. There are then sent to
the NPRC."). The NPRC had responded that no clinical
records were found. The RO's efforts have complied with the
February 1998 Remand from the Board. See Stegall v. West, 11
Vet. App. 268 (1998).
Establishing service connection for a disability requires the
existence of a current disability and a relationship or
connection between that disability and a disease contracted
or an injury sustained during service. 38 U.S.C.A. §§ 1110,
1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski,
2 Vet. App. 141, 143 (1992).
The first responsibility of a person seeking entitlement to
VA benefits is to state a well-grounded claim. 38 U.S.C.A.
§ 5107(a) (West 1991). Establishing a well-grounded claim
for service connection for a particular disability requires
more than an allegation that the disability is service
connected; it requires evidence relevant to the requirements
for service connection and of sufficient weight to make the
claim plausible, i.e., meritorious on its own or capable of
substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609,
610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
The kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some
factual issues, competent lay evidence may be sufficient.
However, where the claim involves issues of medical fact,
such as medical causation or medical diagnoses, competent
medical evidence is required. Id. at 93.
A well-grounded claim for direct service connection generally
requires (1) medical evidence of a current disability; (2)
medical or, in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.
See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997);
Caluza v. Brown, 7 Vet. App. 498, 504-06 (1995). The second
and third Caluza elements can also be satisfied under 38
C.F.R. § 3.303(b) by (a) evidence that a condition was
"noted" during service or during an applicable presumption
period; (b) evidence showing post-service continuity of
symptomatology; and (c) medical or, in certain circumstances,
lay evidence of a nexus between the present disability and
the post-service symptomatology. See Brewer v. West, 11 Vet.
App. 228, 231 (1998); Savage v. Gober, 10 Vet. App. 488, 495-
97 (1997).
For the purpose of determining whether a claim is well
grounded, the truth of evidence submitted, including
testimony, is presumed, unless the assertion is inherently
incredible or is beyond the competence of the person making
the assertion. Robinette v. Brown, 8 Vet. App. 75-76 (1995)
(citations omitted).
The veteran has a current diagnosis of infertility, and there
is competent medical evidence linking that diagnosis with
mumps. However, there is no competent medical evidence that
the veteran had mumps during his military service. He has
said that he did, but he is not a physician, and he is not
competent to render a diagnosis. He has said that he had to
be hospitalized in service, and he is competent to say that,
but his competence extends only to reporting what he did,
where he was, how long he was there, and symptoms observable
to him. It does not extend to providing a diagnosis. In
fact, he has not even stated that he was told he had mumps by
the doctors. He has expressly stated that they told him
nothing during his hospitalization. He has not recounted his
symptoms, saying only that it was "bad."
The effect of the appellant's testimony and statements is to
imply that he was informed by a physician in service that he
had the mumps. Although this diagnosis was reportedly made
by a doctor, the present statement is the appellant's
assertion and, as such, is insufficient to constitute medical
evidence. Robinette, 8 Vet. App. at 77 ("[T]he connection
between what a physician said and a layman's account of what
he purportedly said, filtered as it was through a layman's
sensibilities is simply too attenuated and inherently
unreliable to constitute 'medical' evidence.").
Considering the foregoing facts, it is obvious that the
appellant has not submitted evidence sufficient to render his
claim of service connection for residuals of mumps with loss
of use of a creative organ well grounded. Caluza, 7 Vet.
App. 498. The appellant's contentions and statements on
appeal have been considered carefully; however, this evidence
alone cannot meet the burden imposed by 38 U.S.C.A. § 5107(a)
with respect to showing that the veteran contracted the
disease that caused his sterility while he was in military
service. Espiritu, 2 Vet. App. 492. The Board understands
that the appellant believes that his infertility is causally
related to service; however, he lacks the medical expertise
to enter an opinion regarding a causal relationship between
that disability and any claimed in-service onset. See id. at
494-95. His assertions of medical causation alone are not
probative because lay persons (i.e., persons without medical
expertise) are not competent to offer medical opinions.
Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit, 5 Vet.
App. 91; Espiritu, 2 Vet. App. 492. On the basis of the
above findings, the Board can identify no basis in the record
that would make the appellant's claim plausible or possible.
38 U.S.C.A. § 5107(a) (West 1991); see Grottveit, 5 Vet. App.
at 92; Tirpak, 2 Vet. App. at 610-11; Murphy, 1 Vet. App. at
81.
Where the veteran has not met this burden, VA has no further
duty to assist him in developing facts pertinent to his
claim, including no duty to provide him with a medical
examination. 38 U.S.C.A. § 5107(a) (West 1991); Rabideau, 2
Vet. App. at 144 (where the claim was not well grounded, VA
was under no duty to provide the veteran with an
examination).
Although where a claim is not well grounded VA does not have
a statutory duty to assist a claimant in developing facts
pertinent to the claim, VA may be obligated under 38 U.S.C.A.
§ 5103(a) to advise a claimant of evidence needed to complete
his or her application if on notice that relevant evidence
exists or may be obtainable. This obligation depends on the
particular facts of the case and the extent to which the
Secretary has advised the claimant of the evidence necessary
to be submitted with a VA benefits claim (see Robinette v.
Brown, 8 Vet. App. 69 (1995)), which depends further upon the
Department having notice that relevant evidence may exist or
could be obtained (see Franzen v. Brown, 9 Vet. App. 235
(1996)). See also Epps v. Brown, 9 Vet. App. 341 (1996)
(sec. 5103(a) duty attaches only where there is an incomplete
application which references other known and existing
evidence that pertains to the claim under consideration);
Wood, 1 Vet. App. 190 (1991) (VA's "duty" is just what it
states, a duty to assist, not a duty to prove a claim).
Nothing in the record suggests the existence of evidence that
might render plausible the claim that is not currently well
grounded. Accordingly, the Board must deny the appellant's
claim for service connection for residuals of mumps with loss
of use of a creative organ as not well grounded.
ORDER
Entitlement to service connection for residuals of mumps with
loss of use of a creative organ is denied.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals